In yesterday's "Room for Debate," four distinguished contributors discussed whether "Justice Thomas's silence matters." I was reading the four entries fully intending to respond to them as a whole, until one particular passage from Jamal Greene's entry caught my eye. Here is what he wrote:
He is a judicial iconoclast, opposed to following constitutional precedents with which he disagrees and unwilling to moderate his positions to achieve consensus. He is the court’s most frequent lone dissenter, and to assign an important majority opinion to him is to risk losing your majority because of his uncompromising language.
When you read this, you might be reminded of the conservative critique leveled at Justice Marshall. We saw it most recently during the Kagan confirmation hearings, when Republican Senators tried to pin the activist label on Kagan simply because she had clerked for Marshall. The critique is clearly wrong. But that hardly matters. To the Republicans on the committee, Marshall was a "well-known activist" (Sen. Sessions); "a judicial activist" with a "judicial philosophy that concerns me" (Sen Cornyn); and a judge with a legal view that "does not comport with the proper role of a judge or judicial method."(Sen. Grassley). When pressed for evidence of this activism, the Senators can only offer his insistence on dissenting from death penalty cases.
Anyone who has thought about judicial activism at all will soon find that the concept is often used as a term of opprobrium, to signal substantive disagreement with a judge's positions. In essence, a judicial activist is a judge who disagrees with us. That is human nature, I suppose. What does seem clear from the critique of Justice Marshall, however, is that under any available metric, and particularly the metrics used by conservative critics, Justice Thomas no less a judicial activist than Justice Marshall might have been.
Why does any of this matter? Because Justice Thomas, along with Justice Scalia, are the two model justices for conservatives. We must understand that this is a canard, part and parcel of the mythology that surrounds the courts. Labelling Justice Thomas a model justice is part of a political strategy, not a serious argument.